NBA Video Data-Sharing Lawsuit Reinstated by Second Circuit (2)

A Second Circuit panel vacated a lower court’s ruling that the National Basketball Association could skirt a proposed class action accusing the league of video data-sharing violations.

Plaintiff Michael Salazar sufficiently alleged concrete injury and that he was a “subscriber of goods or services” under the 1988 federal Video Privacy Protection Act, the US court of Appeals for the Second Circuit ruled in an opinion Tuesday. The “core alleged harm"—that his personal information was disclosed to a third party without his consent in violation the VPPA—is similar to harms traditionally recognized as providing a basis for lawsuit in American courts: public disclosure of private facts, Circuit Judge Beth Robinson wrote.

The US District Court for the Southern District of New York dismissed Salazar’s proposed class action against the NBA in 2023 when it found that Salazar wasn’t a “consumer” under the VPPA and that the NBA newsletter he’d subscribed to didn’t constitute an audio-visual good or service. Salazar accused the league of violating the statute by sharing details of his video-viewing history with Meta Platforms Inc.

The Second Circuit vacated the district court’s ruling and remanded the case for further proceedings.

The law bars any “video tape service provider” from knowingly sharing customers’ personally identifying information with third parties without their consent.

But “the VPPA is no dinosaur statute,” said Robinson, adding that its broad language in defining a consumer was intended to prevent the act from gathering “dust next to our VHS tapes.”

“Our modern means of consuming content may be different, but the VPPA’s privacy protections remain as robust today as they were in 1988,” she wrote.

The statute’s language reflects a “bygone era of video technology,” Robinson wrote, including references to “prerecorded video cassette types.” The statute also doesn’t define “subscriber” or “goods or services,” she said.

Current VPPA cases now grapple with how to apply language enacted more than three decades ago to modern day technology, for the first time in the Second Circuit, she added.

During April oral arguments, NBA attorney Matthew X. Etchemendy of Vinson & Elkins LLP said the NBA doesn’t meet the definition of a video service provider under the VPPA, and is more akin to a print newspaper with “pointers” to movies, noting the newsletter wasn’t alleged to have contained videos itself.

He argued the NBA therefore falls outside the scope of the statute’s definition of a provider, which “refers to pre-recorded video cassette tapes or similar audio visual materials.”

The VPPA’s “text, structure, and purpose” show that “subscriber of goods or services” isn’t limited to audio-visual goods or services, Robinson wrote in Tuesday’s opinion, and that “the NBA’s online newsletter falls within the plain meaning of that phrase.”

By trading personal information in return for access to the newsletter, Salazar became a subscriber of that newsletter, the judge said.

“It’s a slam dunk for consumer privacy. The Second Circuit resoundingly rejected each of the NBA’s arguments that the statute doesn’t mean what it actually says,” Michael Murphy, partner at Bailey & Glasser LLP representing Salazar, said in an email. “We look forward to fully exploring just how deep these practices run.”

Circuit Judges Eunice C. Lee, and Jose A. Cabranes also served on the panel.

Attorneys for the NBA didn’t immediately respond to a request for comment.

The case is Salazar v. National Basketball Association, 2d Cir., No. 23-01147, vac’d and rem’d 10/15/24.