The list of sports companies sued for sharing users’ data with Meta grew last Friday when Tampa, Fla., resident David Britt filed a complaint in a Florida federal court against the PGA Tour. Britt says the PGA Tour disclosed his personal viewing information without his consent.
The PGA Tour joins the NBA, NFL, Learfield, Bleacher Report, Paramount Global (247 Sports), NBC Sports andBaseball Americaamong other big names in sports, that are accused of violating the Video Privacy Protection Act of 1988 (VPPA). The VPPA makes it illegal for a video tape service provider to knowingly disclose a consumer’s personally identifiable information to a third party. The VPPA is sometimes called the “Bork Bill” because it was a legislative response to the leaking of Judge Robert Bork’s video rental history while he was a nominee for the U.S. Supreme Court.
Through Brian Levin and other attorneys, Britt contends that when a PGATour.com visitor clicks on and requests a video, the name of the video and user information is shared with Meta—and this sharing allegedly occurs without consent or notification. Britt, who has a Facebook account, says he subscribed to PGATour.com from 2022 until the day he sued, and that he became a subscriber by providing his name, email address and other personal information.
Britt seeks for his case to be certified as a class action on behalf of Americans who subscribed toPGATour.comand obtained prerecorded video materials or services through a browser while being logged into their Facebook account from June 13, 2023, to the present. PGATour.com, like many sports websites, allegedly uses pixel tracking cookies.
The VPPA calls for damages of $2,500, but that modest figure becomes much more threatening in a class action; Britt argues his class would have “thousands (and likely millions)” of people. A million people suing for $2,500 makes a class action potentially worth, at least in theory, $2.5 billion.
The PGA Tour will answer the complaint and seek its dismissal. Expect the Tour to rely on arguments raised by other defendants in VPPA cases. They insist the Reagan-era VPPA has nothing to do with Facebook cookies—it concerns video rental history and, as amended in 2013, the “liking” and sharing of online movies via social media platforms. The defendants also contend they’re not in possession of Facebook data and that cookies transmit the data through internet browsers, which are outside of websites’ control. Also stressed: Even if a sports website could be described as a conduit for unauthorized sharing, the VPPA prohibits disclosures that are made “knowingly,” not inadvertently or even recklessly.
VPPA litigation against sports companies has yielded conflicting outcomes over the last year. The U.S. Court of Appeals for the Sixth Circuit agreed with Paramount that watching sports videos on sports news-oriented websitesdoesn’t make the viewer a ‘consumer’within the meaning of the VPPA. The VPPA, the Sixth Circuit reasoned, contemplates more affirmative steps, namely buying, renting or subscribing to audio-visual content. As a result, merely signing up for fan content offered through a league or website newsletter would fall short. But in a case involving the NBA as a defendant, the Second Circuit found a user who subscribes to an NBA.com newslettercan be a consumerwithin the meaning of the VPPA based on the language of the statute.
The NBA is a key player in how VPPA litigation will play out. The leaguepetitioned the Supreme Courtearlier this year to review its VPPA litigation, urging the justices to consider the presence of conflicting case law among the federal circuits on VPPA and the potentially far-reaching consequences of liability for websites that use cookies. The petition is currently pending before the Court.
