The NFL and NBA may be rival leagues, but they’ve teamed up to petition the U.S. Supreme Court to stop hundreds of class action video privacy lawsuits against leagues, universities, media companies and other businesses that use Facebook cookies to track users’ data.
Last Friday, Kannon K. Shanmugam, Matthew Clarida and other attorneys from Paul, Weiss filed an amicus brief with the U.S. Supreme Court on behalf of the NFL. The NFL urges the Court to accept the NBA’s petition to review Salazar v. NBA, a case where the NBA is accused of violating the Video Privacy Protection Act of 1988 (VPPA) because a California man’s data was shared when he watched free videos on NBA.com while logged into his Facebook account. The NBA scored a dismissal of Salazar’s complaint in the Southern District of New York, but last October the U.S. Court of Appeals for the Second Circuit vacated the dismissal and sent the case back to the trial court.
The NFL has faced VPPA lawsuits involving analogous sets of facts. The same is true of the NHL, MLB, NASCAR, Learfield (representing the University of Texas, University of Florida and University of Nebraska), the New England Patriots, NBCUniversal, Peacock TV, Paramount Global (247 Sports), Baseball America and many other companies.
The NFL warns that if these lawsuits prevail, sports leagues could be held liable if a fan buys or otherwise acquires any league item—including a game ticket, apparel, memorabilia, newsletter or a mobile offering—and then visits the league’s website to watch highlights or other video of their favorite team.
The NFL argues that disclosure of data regarding video history to Meta “is no real harm at all.” Just the opposite, the NFL asserts, consumer surveys indicate that nearly 80% of people would rather watch advertisements than pay for content that is currently free.
“Consumers are well aware that enabling the use of cookies permits personalized advertising, and they recognize that much of the content they view on the Internet is free as a result,” the NFL asserts.
Although a fan whose video-watching data is shared arguably hasn’t suffered a kind of harm the law ought to remedy, the VPPA provides minimum statutory damages of $2,500 per plaintiff. That might sound like a drop in the bucket for a multibillion-dollar league like the NFL or NBA, but the NFL notes that statutory damages can “add up quickly” in a class action where potentially numerous consumers are class eligible.
As the NFL points out, the number of potential VPPA plaintiffs against a major sports league is massive given that they have hundreds of millions of fans. Millions of those fans at some point purchase or obtain an item from a league and then check out league and team websites to watch free videos. To accentuate the risk of hefty damages, the league cites settlements of class actions involving VPPA claims for as much as $92 million.
Even with the NFL’s help, the NBA faces challenging odds in convincing the Court to hear Salazar. The Court only grants about 1% of petitions and at least four of the justices need to give the thumbs up. A case about Facebook cookies and NBA.com videos might seem like small fries for a Court that tends to review matters of paramount importance, including those that are life and death matters. The law at stake might also seem relatively unimportant. Dubbed the Bork bill, the VPPA was a response to a newspaper leaking the video rental history of Judge Robert Bork while he was a nominee for the U.S. Supreme Court in 1987.
Yet the NFL asserts the Court ought to hear Salazar because federal courts of appeals have issued conflicting decisions. That means persons and businesses in different parts of the country effectively have different rights depending on where legal claims are brought.
The Second Circuit and Seventh Circuit, the NFL points out, have determined that a person can be a “consumer” within the meaning of the VPPA without having bought, rented or subscribed to an audiovisual good or service, but the Sixth Court reached the opposite conclusion.
“The resulting conflict,” the NFL maintains, “makes this case indisputably ripe for the Court’s review.” The NFL also contends that VPPA class actions now present a “pressing issue” in that they pose businesses “with massive liability unforeseen by Congress and incommensurate with any conceivable harm suffered by consumers.”
The NFL urges the justices to think about when the VPPA became law. It was an era when video stores were popular and many people rented VHS movies from video rental stores. Congress sought to protect the privacy of consumers whose rental lists could be disclosed. Although the VPPA was amended a dozen years ago to address online streaming of movies, extending the VPPA’s reach to live sports and highlight videos is, the NBA and NFL insist, too far afield.
If the justices grant the NBA’s petition, the NFL should be credited with an assist.