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The PGA Tour Inc. and a Georgia-based media company teed off in oral arguments last week before the 11th U.S. Circuit Court of Appeals over who may publish real-time golf scores. At issue is whether the PGA can force media outlets that cover its tournaments to delay the publication of real-time scores provided through the PGA press center. In recent years, Internet use has increased both the demand for real-time scores and their revenue-generating potential. This market has pitted the PGA’s official source for real-time scores, www.pgatour.com, against Augusta-based Morris Communications Corp., which seeks to sell the same information to other media outlets. In a case that combined antitrust and First Amendment issues — and some heated debate — both sides couched their arguments in economic terms. The PGA’s attorney, Jeffrey A. Mishkin of New York’s Skadden, Arps, Slate, Meagher & Flom, argued that because PGA tournaments are private events, unauthorized profiteering is akin to selling property stolen from a home. Morris’ attorney, George D. Gabel Jr. of Holland & Knight’s Jacksonville, Fla., office, disputed the theft analogy. He argued that the PGA invites news organizations and tens of thousands of spectators to each event and actively seeks the publicity they generate. Gabel asked the three-judge panel to increase “consumer choice” and the need for a competitive marketplace. Mishkin also invoked the competitive marketplace concept, but he asked for the law’s protection of his client’s “commercial product.” In its brief, Morris alleges the tour violated antitrust laws and exhibited “predatory behavior” by conditioning media access to its tournaments on an agreement to delay publication of real-time scores. This policy, Morris contends in its brief, results in a virtual monopoly on reporting and raises the question of “who, if anyone, controls the news.” In its pleadings, the PGA counters that it is not seeking to control coverage. Rather, it wants to protect its sophisticated golf-score reporting system from those who would sell the scores to third parties — without compensating the PGA. AN ‘OFFENSIVE’ POLICY In 2002, Judge Harvey E. Schlesinger of the U.S. District Court for the Middle District of Florida ruled in the PGA’s favor. He found that it has a “property right in the compilation of scores” and a protected ability to sell or license that right, and to prohibit others from doing so. Morris Communications Corp. v. PGA Tour, 235 F.Supp. 2d 1269 (M.D.Fla. 2002). During arguments before the 11th Circuit on Jan. 14, Morris’ attorney, Gabel, assailed Schlesinger’s decision, calling the PGA’s policy “offensive.” He asserted that golf scores enter the public domain as they occur (rather than when they are received by the press center), making the scores fair game for publication by news organizations. Because the scores are in the public domain, Gabel continued, Morris was not “free-riding” or otherwise unfairly taking advantage of the PGA’s investment in the development and implementation of its reporting system. Gabel also argued that if the PGA’s policy were sanctioned by the court, then policies such as those created by the PGA could be limitless. “Everything the news media covers is free-riding,” he argued, because news organizations report, rather than create, facts. But Judge Joel F. Dubina, a self-described golf lover, noted that the PGA’s expense in creating and maintaining the scoring system is one reason it might maintain a proprietary interest. “You haven’t contributed one thin dime [to the development and implementation of the system],” Dubina said in response to Gabel’s assertions. Senior Judge Emmett Ripley Cox asked Gabel whether the PGA could preclude all media outlets from attending its events. Gabel responded that though the PGA legally could choose not to invite news organizations to its functions, it could not exclude media to gain an unfair advantage in reporting events. Doing so, he argued, would be an antitrust violation. Before the PGA’s attorney, Mishkin, began his argument, Chief Judge J.L. Edmondson explained his view of the case. Edmondson said he started with the proposition that controlling the dissemination of facts such as golf scores is “bad.” But the argument that the PGA spent a great deal of time and money developing and maintaining the scoring system was “attractive to [Edmondson] as a person,” he explained. Other than the “sweat of the brow” defense, Edmondson said he saw no viable defenses to the suit. “Golf scores are facts,” Mishkin conceded, but he argued that Morris was not merely seeking the freedom to report a newsworthy event. Rather, the media group was interested in the “commercial exploitation” and sale of the results of the PGA’s scoring system. The PGA had the right to protect its product from unauthorized and uncompensated use, Mishkin said. The prevention of such free-riding is a legitimate business justification that overrides any alleged antitrust violations, he added. FIRST AMENDMENT ARGUMENT In addition to antitrust issues, the case triggered First Amendment arguments. In a friend-of-the-court brief filed on behalf of The Newspaper Association of America and media groups including Cox Enterprises, The Georgia Press Association and The New York Times Co., Jonathan D. Hart of Washington’s Dow, Lohnes & Albertson argued that the district court’s ruling would give the PGA the freedom to prohibit spectators from reporting real-time scores via cell phone. Mishkin acknowledged that the PGA already prohibits spectators from engaging in such speech. Every PGA event attendee is under license — cell phones are banned from tour events and attendees are prohibited from transmitting information from the course during tournaments. Allowing that kind of reporting, Mishkin argued, would undercut the value of broadcast rights agreements, which provide “an enormous amount of money” to the PGA’s coffers. The PGA, a nonprofit organization, took in more than $300 million in revenue in 1999, according to court briefs. John Hanusz is an Atlanta attorney and freelance writer.

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