In June 2007, John McClain, who covers the NFL’s Houston Texans for the Houston Chronicle, was getting tired of a league rule that limited the Chronicle to posting no more than 45 seconds of team video on its web site every day. So he and his colleague Anna-Megan Raley decided it was time for a tongue-in-cheek protest. They shot the video you see above, in which they interview several Texans players and officials while racing against the clock to stay within the NFL’s rules — yelling “time” and scampering off to the next interviewee whenever someone took too long to answer a question.

Protests like McClain’s — along with the lobbying of news organizations and associations — got the 45-second limit expanded to 90 seconds a year later. But many journalists still find it grating that the subject of coverage can dictate how it can be covered. (Can you imagine a mayor trying to dictate similar terms to a city hall reporter?) And as we’ve seen, teams and leagues are increasingly using the lever of access to dictate what kinds of coverage news organizations can provide.

What lessons can be learned from the battles sports journalists have fought with leagues that want to limit digital rights? We asked a few people who have been on the front lines, and here’s what they told us.

— Keep negotiations out of the headlines whenever possible. That goes against the instincts of most journalists, particularly when a freedom-of-speech issue is at stake. But John Cherwa, legal affairs chair of Associated Press Sports Editors (APSE), said these negotiations are best handled outside public view for as long as possible. “Very few good things can happen when people are backed in a corner,” he said. “And when you’ve got both sides backed in a corner, the outcome is not as satisfying as when both sides can declare victory. Do everything you can to reach out.”

That’s not possible in every case, Cherwa said — if the restrictions have already imposed, more forceful action may be necessary. But even in the most drastic cases, like the NFL restrictions, a compromise was reached. McClain said there have not been as many complaints among sportswriters under the new 90-second policy and that, for the most part, 90 seconds is enough time to do a simple interview. (Although “if you want to do a feature with multiple players you can’t do it,” he said. “I had a bunch of fun ideas that I couldn’t pull off.”)

Cherwa says it’s important to understand the league’s motivations, “because a lot of needless fighting and bickering and bad feelings can be eluded if you can figure out what their end game is and what their goal is.” He gave an example of a dispute with NASCAR over restrictions on photographers’ rights. “We asked them what they were trying to do, and they said ‘Prevent people in the stands shooting pictures of [Dale Earnhardt] Jr. and selling it on eBay.’ ‘Okay,’ we said, ‘let us help you write that language that works for us and you.’”

— Get creative to get around the rules. The NFL video rules restrict video content shot at team facilities. So McClain and Raley conduct longer on-camera interviews when the Texans make weekly appearances in the community. They’ve also done longer interviews with the team owner at the hotel across the street from the stadium.

During and after this year’s NFL draft, new Texans draftees appeared at the team stadium for interviews with the press, and the Chronicle kept cameras rolling well past 90 seconds. The reasoning? The players hadn’t yet signed contracts with the team and thus shouldn’t count under the 90-second rule. No one challenged them. (McClain suspects the NFL will eventually extend the 90-second rule to all interviews, regardless of where they are conducted.)

The NFL and MLB scenarios are certainly extremes. There is usually more room for negotiations and it’s even possible to find middle ground to collaborate on. But Cherwa said a deal has to be worked out before both sides get bent out of shape about perceived threats.

— Stand up for your news organization’s place in the community. McClain stressed that a newspaper or TV station shouldn’t be afraid to hold your status as the local media outlet over teams’ heads. He said NFL teams often leak stories to national media outlets such as ESPN instead of local media. McClain said that, on occasion, he’ll remind the team that the Chronicle and its web site are the primary source of Texans news for Houstonians, not ESPN, and therefore help sell tickets and secure sponsorships more than the national outlets do.

“If I’m calling and [ESPN reporters are] calling and you give it to them than we have a problem,” McClain said. “I told all the coaches and general managers that [the national media] can’t get you fired. But if everyone in town wants you out, you’re out.”

— Closely monitor all the information your team produces. With teams looking to serve as media outlets themselves, there can be valuable nuggets of information hidden on the back pages of a team’s official web site. The same applies to the social media tools that individual players and coaches now use to communicate directly with the public, whether it’s Charlie Villanueva’s Twitter account, Curt Schilling’s blog, or Tiger Woods‘ official site.

“Why not read them?” McClain said. “You might see something you can use in three months. You might find out something little in an interview that you can turn into something big. If I covered a police beat and the cops I cover are Twittering or on Facebook, I’d monitor the heck out of all them.

“People say at some point it’s too much information but I don’t think so. Unless it causes you to lose your mind, you need as much information as you can get about your job. That holds true for travel writing, food writing, cops and courts, no matter what it is.”

It is important to remember, though, that these tightly controlled messages are often little more than glorified press releases. APSE advises its members to cite any news that comes from MLB.com or NFL.com story as a “league report.”

— Create your own brand, distinct from what the league or team offers. In the end, McClain’s protest video got so much traction not just because the NFL was implementing a silly rule. It was also because McClain has build himself as a local celebrity who not only informs football fans but entertains them as well. McClain says his trick is self-promotion and customer service. He always plugs his blog on Chron.com during his radio show and whenever he gives an interview to another media outlet (like this one). He replies to as many emails and blog posts as possible and always tries to make time for people who recognize him in public.

There are plenty of potential pitfalls in this new world, particularly when reporters’ desire to build a brand for themselves conflict with their traditional duties as journalists. What would have been considered clear-cut conflicts of interest in the profitable print era sometimes look more gray online.

“As the news businesses comes under unbelievable pressure, the temptation to get rid of old ethical standards become pretty overwhelming,” Northeastern journalism professor Dan Kennedy said. “I don’t want to issue a blanket condemnation for what news organizations might do. I think it might happen on a case-by-case basis. Getting beyond the idea of reporters taking money from the people he or she is covering — that is obviously not something that should happen — I suspect everything else is up for grabs. There are a lot of things we may not like, but there may be some inevitability to it.”

With no live programming in the morning, MLB Network had to scramble to assemble its crew after the bombshell broke Feb. 7: Sports Illustrated’s Selena Roberts and David Epstein were reporting that Alex Rodriguez had tested positive for steroids in 2003 as a member of the Texas Rangers. But within a few hours, MLB Network had rolled out its stable of talking heads to interview slews of former players and general managers about the newest scandal to rock baseball.

“By 2 p.m., decorated broadcast veteran Bob Costas was interviewing Roberts in studio,” The Washington Times’ Tim Lemke wrote a few days later, praising the network for going “a long way toward establishing itself as a credible source of news” by not dodging the A-Rod scandal.

MLB Network’s A-Rod coverage was heralded by the Los Angeles Times and Street & Smith’s Sports Business Daily, which called MLB Network “no house organ” — a sentiment the pioneering sports blogger Will Leitch made where he wrote, “If the MLB Network ends up being a success, Saturday’s breaking-news coverage of A-Rod will be its Hugh Grant on Leno moment.”

But it’s worth noting that MLB Network’s coverage was being praised primarily for not choosing to ignore (or spin) the biggest baseball news of the year. Simply ignoring a story that huge would have been suicidal. As MLB Network spokesman Matt Bourne told me: “If certain things are not discussed that’s not going to pass the smell test with fans.” The question that remains unanswered is, in a world where leagues are increasingly creating their own media outlets, is it possible to imagine a story like A-Rod’s being broken by MLB Network — or, in other sports, by the NFL Network or NBA TV? If league-owned networks continue to grow in prominence, how will that impact the way sports are covered?

When reporters work for leagues

The lines between media and sports teams and leagues have never been perfectly clear. The New York Times Co., which owns The Boston Globe, also owns 17.8 percent of the Boston Red Sox, which Globe reporters obviously cover every day. The Tribune Co., owner of the Chicago Tribune, also owns the Chicago Cubs. Cablevision, which owns Newsday, also owns the New York Knicks and the New York Rangers. Networks like ESPN and Fox Sports cover sports while also having multibillion-dollar contracts with the leagues they cover. And at various points, the online operations of leagues and news organizations have been contractually linked. News organizations in those cases have traditionally argued they maintain a strict firewall between the sports side and the journalism side, although ESPN did cancel a fictional series about professional football when the NFL (“a longtime and valued partner”) complained.

The addition of league-owned media outlets has created a new layer of complications. At MLB Network, the in-studio team of analysts includes Tom Verducci and Jon Heyman, both of whom are senior baseball writers for Sports Illustrated — ironically, the publication whose scoop on the A-Rod steroids scandal prompted the network’s plaudits. Both Verducci and Heyman continue to write regularly for SI while also appearing on a network majority-owned by the league they cover.

There’s no evidence that their business arrangements have had even the slightest impact on their baseball coverage for SI — no obvious pro-MLB spin, no critical stories they’ve ignored. And sports reporters at magazines and newspapers have long been willing to work for TV networks on the side. But having that network owned by the subject of a reporter’s coverage adds a new complication.

“It’s situational,” Terry McDonell, editor of the Sports Illustrated Group, said about when it’s okay for SI reporters to appear on TV. “There’s a lot of call for our writers to appear on TV because of their expertise. We find, because we’re competing with massive networks, this is one of the best ways to make sure our journalism gets out. It’s a way to compete without owning [broadcast] rights.”

As to Verducci and Heyman: “With those two, I am comfortable enough with their integrity and record and performance as journalists to think they would not be corrupted” by working for MLB Network. “We monitor it closely, and if something were to come up, we’d do something about it. But I’m confident in those guys.” He rightly notes it would be hard for anyone to call SI’s coverage of MLB improperly friendly when it was the place that broke the A-Rod story in the first place.

Still, MLB Network clearly benefits from the hard-earned credibility of Verducci, Heyman, and SI. “It’s very important for us to have Tom and Jon on board from day one to establish our credibility, and we feel we got two of the best people for the job,” network president/CEO Tony Petitti said in announcing Verducci’s hire in December. Bourne emphasizes that MLB Network does not restrict what journalists such as Costas, Verducci, and Heyman can report or say.

Conflicts of interest

The biggest risks of warped coverage might not be in the high-profile spots like a national network owned by an entire league. It might be at a more local level, where individual teams now produce a lot of original content through their web sites. John McClain, who covers the Houston Texans for the Houston Chronicle, told me about a good newspaper beat writer he knew who had been hired away by the team he covered to write for its web site. Initially, the team allowed him to cover the franchise just as aggressively as he did in his newsprint days. But with a change in the team’s leadership, McClain said, his dispatches quickly became more diluted. Mainstream journalists who go to work for team sites might “nibble on the hand that feeds,” McClain said, “but you can’t bite it.”

Conflicts have also come up at news organizations where the team shares an owner with a news outlet. John Cherwa, sports coordinator for the Tribune Co. and legal affairs chair for Associated Press Sports Editors, told me a story about how, during the 1999 World Series, the Chicago Tribune learned that the Cubs were going to hire Don Baylor, making him the Cubs’ first black manager. According to MLB rules, teams can’t announce personnel moves until after the World Series. The Tribune Co. owned the Cubs. Cherwa said, as a courtesy, they asked their publisher for advice and were ultimately told to run the story. “If it was the Chicago White Sox, I don’t think the publisher would be told,” Cherwa joked. “In the end, he made the right decision.”

Cherwa wonders what would happen in a similar scenario at MLB.com. Would an editor run it “up the flagpole,” and would the ultimate decision be made in the interest of informing the public? Would MLB’s other contractual obligations have limited its ability to break legitimate news? For example, Major League Baseball had agreed with the players association not to divulge the names of players who tested positive for steroids in the 2003 round of testing. Would that agreement have kept an ambitious MLB Network reporter from breaking the A-Rod scandal?

One other backdrop to these new questions is the growth of sports blogs that promote their distance from what might be called the sports-industrial complex. The popular blog Deadspin brands its coverage “Sports News without Access, Favor, or Discretion” and argues there can be value in reporting sports news from an arm’s length. Implicit in that argument is that there are conflicts inherent in even the traditional beat reporter’s job, since he relies on access to the team to do his job — and at least part of that access is strongly influenced by the team itself. Those conflicts are obviously magnified when that reporter is on the team’s payroll.

But whatever one thinks of the Deadspin critique, the A-Rod scandal alone proves that there’s enough at stake in sports for it to matter if the news is produced independently or not. “I will go to the grave thinking people find more credibility in the independent voice of the Boston Globe or Boston Herald,” Cherwa says, “and believe it to be more factual than the people at MLB.com.”

Photo by Alan Penner used under a Creative Commons license.

Before diving any deeper into the growing power of sports leagues over how news organizations do their work, it’s important to trace the legal path that got us to this point. A few landmark cases have played a big role in determining what kinds of influence can be wielded over your local sports section.

In 1997, the NBA unsuccessfully sued Motorola (National Basketball Association v. Motorola, Inc.) for infringing on its exclusive rights to the broadcasts of games by electronically providing customers with in-game updates. The court ultimately found that the statistics of a game are un-copyrightable facts. In other words, nobody can claim ownership to the fact that a LeBron James slam dunk produced two points or that three Ray Allen three-pointers are worth nine points; that information exists entirely in the public realm, available for everyone’s use.

The flap began when Motorola marketed and manufactured a pager called SportsTrax. The device supplied customers with real-time information about NBA games, including the score, who had the ball, and how much time remained in the contest. The service relied on reporters watching the game and keying stats into a computer. The NBA argued the service infringed on the sale of exclusive broadcast rights, which can be copyrighted because creative capital is expended in the broadcast’s production. The transmitted sounds, images, and graphics are a copyrightable expression of the so-called “facts of the game” or “underlying game.” Legally speaking, however, the court said sports events themselved “are not ‘authored’ in any common sense of the word.”

That lined up with a landmark 1991 case (Feist Publications, Inc. v. Rural Telephone Service Co.), in which the Supreme Court held that:

“No one may claim originality as to facts”…This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence…The same is true of all facts — scientific, historical, biographical, and news of the day. “They may not be copyrighted and are part of the public domain available to every person.”

The game’s basic facts fell within the Court’s definition of “unoriginal,” meaning Motorola was not in violation of the league’s copyrightable expression of the games. Another case, in 2007 (C.B.C Distribution and Marketing, Inc., v. Major League Baseball Advanced Media, L.P.), reinforced that ruling by saying stats used in fantasy baseball games were protected by First Amendment principles.

As encouraging as these decisions were to journalists and Internet proponents, in 2004 the U.S. Supreme Court declined to hear an appeal by the Morris media company in a case involving golf (Morris Communications v. PGA Tour). Morris claimed it had a right to publish and sell time-sensitive golf scores from PGA Tour events covered by its reporters. Without comment, the Court upheld a lower court’s ruling that media companies couldn’t post or sell real-time scores to web sites that didn’t purchase the PGA’s licensing agreement. Morris had filed an antitrust claim after the PGA Tour drafted restrictions in 1999 barring media outlets who published real-time scores from covering their events. The 11th U.S. Circuit Court of Appeals in Atlanta sided with the PGA Tour, ruling that the PGA Tour’s real-time scoring system required significant capital, staffing and technology and therefore justified the selling or licensing the information.

APSE, the American Society of Newspaper Editors, and the Reporters Committee for Freedom of the Press all supported Morris’ appeal to the Supreme Court, arguing that the PGA shouldn’t have ownership rights over information disseminated from public events. While the case only sets precedent for 11th Circuit, John Cherwa, APSE’s legal affairs chair, said a lot was lost in the Morris case, which made it clear that appeals to the First Amendment did not always guarantee what journalists considered legitimate news coverage.

“[Morris] went to court in Georgia, in the Deep South — maybe in another area it would’ve turned out differently, but it did turn out against the press,” Cherwa says. “That becomes the cornerstone of all sports credentials created today. Basically it says they can write in whatever they want and we have to follow it or we don’t cover [the event].”

Battles over video rights

Nowhere has the upshot of the Morris decision been more evident than in the APSE’s fight with Major League Baseball and the NFL over digital rights. The battle reached its peak about two years ago when the NFL wrote a clause into its season credentialing agreement for beat reporters that drastically limited the amount of non-game audio and video content the media could obtain at NFL facilities.

The new rule stated that websites couldn’t post more than 45 seconds per day, including news conferences, interviews and practice-field reports. Just before the latest NFL season began last fall, the league agreed to double that amount to 90 seconds per day — but APSE had to fight ridiculously hard to win what amounts to little more than a bone.

“We wanted to stake our claim and say ‘You can’t do that,’” Cherwa says of the fight with the NFL. “There would’ve been an equal fight if they said we could only have 180 seconds.”

APSE had a similar fight with MLB, which currently allows 120 seconds of audio or video per day. During the controversy, APSE advised its members to sign credential agreements under protest. MLB also tried to restrict newspaper’s online photo galleries but Cherwa said APSE and MLB agreed to vague terms that allow a “reasonable amount” of photos to be posted online.

Blogs have also been another battleground between newspapers and athletic administrators. In 2007, the Louisville Courier-Journal’s Brian Bennett blogged live from the University of Louisville’s baseball games in the first two weeks of the College World Series. But during a game against Oklahoma State on June 10, NCAA officials kicked him out of the press box for blogging about the game.

While the NCAA issued several memos outlawing blogging prior to that moment, it never included such restrictions on its credential agreement. Nevertheless, the NCAA claimed that any live representation of the game infringed on its broadcast licensing agreement with ESPN. The incident drew sharp criticism from lawyers and journalists alike. Despite editors’ quickness to call is a First Amendment issue, ultimately the Courier-Journal’s lawyers didn’t pursue litigation. The NCAA, for its part, changed its policy the next season to allow some blogging.

During last year’s NBA season there was also uproar when Dallas Mavericks owner (and blogger) Mark Cuban banned bloggers from the Mavs’ locker room, saying that there weren’t enough credentials to go around. Cuban also said that bloggers from large outlets such as The Dallas Morning News shouldn’t have better access than an independent blogger. This policy came two years after Cuban himself criticized the NFL for limiting newspapers’ ability to cover teams online. (Lately, Cuban has taken to Twittering about subjects like the quality of refereeing in Mavs games, which he called “another way to have fun and mess with the media.”)

Conflicts over high school sports

Some of the most bitter battles over digital rights have taken place on high school athletic fields. The Wisconsin Interscholastic Athletic Association (WIAA) sued Gannett, parent of The Post-Crescent in Appleton, and the Wisconsin Newspaper Association. Alleging that The Post-Crescent streamed video from a high school playoff game in November, the lawsuit filed in December asserts that the WIAA owns rights to any “transmission, Internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game action, information or commercial used” of games played at their member schools.

WIAA has also restricted newspapers from reselling photos from its games after it awarded a photography firm the exclusive resale rights of photos from its sporting events. Many Wisconsin papers ignored the rule and the WIAA didn’t press the issue. But one state over, the Illinois Press Association sued the Illinois High School Association for restricting photographs of athletic events last year. Before the lawsuit was settled — with both parties agreeing that the IHSA could issue photography credentials but not limit photographer’s access except for safety considerations — some Illinois newspapers shot photographs from the stands. Others boycotted the rule by refusing to shoot the events at all, explaining their editorial decision in notes to readers. (APSE offers advice about how to handle these issues of photo rights here and state-by-state photo policies here.)

In some states there has been talk about newspapers and high school athletic associations sharing content and resources. Many news organizations that once saw themselves as bitter rivals — now facing enormous financial challenges — have been willing to strike content-sharing agreements in recent months.

“We’ll see that become more common, that, newspapers are sharing resources,” Cherwa said. “That seems okay. But are we willing to take the next step and become partners with the people we cover? Time will tell that.”

Photo of Lady Justice by armykat1014 and photo of Mark Cuban by Ed Schipul used under a Creative Commons license.

[Today, we're starting a four-part series by our friend Justin Rice on how the media tables are turning in the world of sports, where the subjects of coverage are becoming the creators of coverage — and what implications those shifts have for the rest of the news business. —Josh]

Thirty-eight days after Major League Baseball launched its own cable channel, MLB Network, in January, the new station found itself covering one of the sport’s biggest stories in years: the news in the baseball world that Yankee slugger Alex Rodriquez had tested positive for steroids in 2003. MLB brass boasted that the coverage — praised by many — was evidence of their ability to cover all the bases of baseball news, whether good, bad, or ugly. The network was praised again last month for jumping on the story that Dodgers outfielder Manny Ramirez was suspended 50 games for taking a banned substance.

We’ll spend the next three days looking at the broader implications of what happens when media power shifts toward the institutions journalists cover. Journalists are still adjusting to “the people formerly known as the audience” and their new publishing power; what about the people formerly known as our subjects? What happens when the people and organizations we cover also cover themselves? Are they our sources, competitors or some sort of hybrid? In many cases our sources and subjects have better access to the readers and viewers than news organizations do — not to mention the ability to put artificial limits on reporters’ access or coverage. They also have the same, if not better, technology we consider tools of our ever-changing trade.

This disintermediation of media isn’t limited to the sports world. We all know about candidate Obama using his own web site to connect directly with voters and citizens. Government agencies have launched their own “news services” to get around their traditional path to citizens, newspapers and TV stations. The rich and powerful can now use social networking tools to speak directly to their desired audience; when Shaquille O’Neal was traded to the Cleveland Cavaliers last week, he did most of his talking about the deal via Twitter, not via a reporter.

Journalists on many beats are just beginning to wade through these issues. Luckily, sports journalists, especially the officers of the Associated Press Sports Editors, have the battle scars and war stories to help the rest of us navigate through this digital warfare. Perhaps most notably, sports reporters and editors have fought against rules by MLB and the National Football League that limit the amount of audio and video content newspapers can post and archive on their websites to no more than 120 seconds per day in the case of MLB and 90 seconds in the NFL’s case.

“It’s more about who owns the history; do they own the history or can we be part owner of the history?” John Cherwa, APSE’s legal affairs chair told me in a phone interview. Cherwa, who is also special projects editor of the Orlando Sentinel, has spent the last decade fighting MLB, the NFL and other leagues over the fine print crammed on the back of credentials that traditionally only lawyers bother to magnify.

Journalists, Cherwa says, have traditionally invoked the First Amendment to fight for their position. “These are not First Amendment issues,” Cherwa says. “They are contract law, intellectual property law and copyright law. It’s not constitutional law. To try to get people to understand that is hard. I know our reflex button is to cry ‘First Amendment, First Amendment.’ Well, the First Amendment protects a lot of what we do, but the First Amendment does not protect us from going into someone else’s home — i.e. their practice facility — by invitation, by contract and doing exactly what we want to do. I wish it did. But it doesn’t.”

Photo of Rodriguez by Antonio Encarnacion, used under a Creative Commons license.