Originally created 01/15/04

Judges try to classify Morris-PGA Tour suit



ATLANTA - Who controls golf scores - and how quickly fans can see them on the Internet - is the core issue of a lawsuit argued Wednesday before a federal appeals court.

Morris Communications Corp., the owner of The Augusta Chronicle, wants instant access to scores so it can sell them to Web sites. But the PGA Tour Inc. has its own Web site where it posts scores first, and it doesn't want any competition.

An attorney for the Tour told a three-judge panel of the 11th U.S. Circuit Court of Appeals that, because tournaments are private events, its governing association can decide when scores become public. The PGA doesn't make them public for redistribution until they've already appeared on the Tour's Web site for 30 minutes.

On the other hand, a Morris attorney contends that scores are facts that become public the moment they occur. By being public, the PGA Tour can't limit who uses them.

As a clue to the complexity of the matter, consider that the first question from one of the judges was, "What kind of case is this?"

Judge Joel Dubina asked, "Is this an antitrust case or a copyright case or a First Amendment case?"

Morris attorney George Gabel said Morris' lawsuit against the Tour is an antitrust matter. He said it all boiled down to the Tour acting as a monopoly that was trying to restrict a competitor's efforts.

Judge Dubina repeated the Tour's claims that it had spent millions of dollars to develop a system for collecting the scores from the course as they happen, an investment PGA says gives it a legitimate reason to restrict Morris and others from selling the scores.

Mr. Gabel argued that news media always use information produced by others because reporters don't manufacture their own facts.

PGA Tour attorney Jeffrey A. Mishkin also was asked tough questions, this time from Chief Judge J.L. Edmondson.

"My thought was that these scores are facts and your client was trying to monopolize these facts," the judge said. "I began with the proposition that this was bad."

Mr. Mishkin acknowledged that scores are facts but said tournaments are private events because PGA controls who gets in and what people can do at the event through the fine print on the back of spectator tickets and media credentials. Those limitations prevent ticket holders or sportswriters from reporting scores on cell phones, the Internet or other ways, he said.

Without those limitations, sports organizations would have no way to make back the money they invested in sponsoring events or in the score-gathering system the PGA created, Mr. Mishkin argued.

He painted the image of a conversation in a private living room. What is said may be newsworthy and becomes public, in a legal sense, as soon as it's uttered, but since no reporters are there, it remains essentially a private conversation.

"It's like an invited guest coming into your home, taking your property and selling it," Mr. Mishkin said.

The judges gave no hint about when they would reach a decision, but rulings usually take months. Considering the interest the case has generated, with many newspapers filing briefs in support of Morris, the outcome is likely to be appealed to the U.S. Supreme Court.