A federal judge from the Southern District of New York has granted the NFL’s motion to dismiss a lawsuit brought by a fan, who sued the league, pursuant to the Video Privacy Protection Act (VPPA).
The ruling hinged on the court’s determination that the fan was not a consumer of “a video tape service provider” as required of claims brought under the Act.
By way of background, the NFL operates three similarly named products or services – a website called NFL.com, a phone application called the NFL App, and a digital subscription called NFL+. On NFL.com and the NFL App, users can watch video content. NFL+, meanwhile, offers access to exclusive video content on a subscriber’s desktop, tablet, and mobile device. Video content available on NFL+ includes both live and prerecorded content.
An individual may register for NFL.com by signing up for an online newsletter. To do so, an individual provides personal information including name, email address, and ZIP code. To register for NFL+, a user must provide her first name, last name, date of birth, and country; she also has the option of providing her ZIP code. The NFL tracks the IP address used to initiate a subscription to NFL.com or NFL+, thus linking the IP address — and the corresponding physical location — with a specific individual. Also, any NFL+ subscriber that uses the NFL App provides the NFL with a unique device-identification number, geolocation data, and other information.
NFL.com has a privacy policy, which states that the defendant “may collect” certain “types of information when you register with or use our Services . . . [or] access various content or features,” including “[c]ontact information,” “[d]emographic information,” and “[r]eal-time [g]eolocation information.” The Privacy Policy also states that Defendant “may use” this information “for a variety of purposes” and provided examples of such uses.
NFL.com also has a terms-and-conditions agreement, Section 19 of which is captioned “Choice of Law, Arbitration, and Class Action Waiver.” It states, among other things, that:
“Any proceedings to resolve or litigate any dispute will be conducted solely on an individual basis. Neither you nor the NFL will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.”
The NFL collects and shares the data and personal information of users of NFL.com and the NFL App with third parties through cookies, software-development kits (SDKs), and tracking pixels.
As pertinent here, Plaintiff Brandon Hughes alleges that the NFL installed Facebook’s tracking pixel (Pixel) on NFL.com and the NFL App. When a digital subscriber enters NFL.com or the NFL App and watches a video, the Pixel sends certain information to Facebook, including the name of the video, its URL, and the viewer’s Facebook identification number (the FID). “Similarly, the NFL App can share user data with Facebook, through the use of one or more of Facebook’s SDKs,” according to the complaint.
Facebook uses the information obtained through the Pixel to show targeted advertisements. The plaintiff alleges the NFL purposefully incorporated the Pixel code on NFL.com and the NFL App, knew that the Pixel would disclose information to Facebook, and financially benefitted from disclosing this information to Facebook. Furthermore, the information transmitted to Facebook is not anonymized. Thus, Facebook can either add the data to the information it already has for specific users or use the data to generate new user profiles.
Hughes, an Illinois resident, has been a digital subscriber of NFL.com from 2020 to the present. He has had a Facebook account since 2006. By virtue of his NFL.com digital subscription, Hughes receives emails and other communications from the NFL. Also, “[d]uring the relevant time period,” Hughes “has used his NFL.com digital subscription to view Video Media through NFL.com and the NFL App.”
When watching videos on NFL.com, Hughes was logged into his Facebook account; when watching videos on the NFL App, he had the Facebook mobile app also installed on his phone. Consequently, when Hughes watched videos on either platform, “Plaintiff’s Personal Viewing Information was disclosed to Facebook.”
Hughes “was a digital subscriber of NFL+ during, at least, August 2022.” Through his NFL+ subscription, he received “access to content and features available only to NFL+ subscribers.” He viewed an unidentified number of videos that were “only provided through the NFL App to NFL+ subscribers.” Hughes never gave the NFL “express written consent to disclose his Personal Viewing Information.” Also, he allegedly did not discover that the NFL disclosed his Personal Viewing Information to Facebook until August 2022.
The lawsuit was filed in the Northern District of Illinois on September 14, 2022.
During the course of the litigation, on August 7, 2023, the Court granted a motion to dismiss in Salazar v. National Basketball Ass’n, 685 F. Supp. 3d 232 (S.D.N.Y. 2023), a case involving a similar claim under the VPPA. Of relevance here, that ruling was appealed to Second Circuit. In light of this, Hughes asked the court to stay any ruling until the Second Circuit could decide the Salazar appeal.
Leading to the instant opinion, the NFL moved to dismiss the claim, pursuant to Federal Rule of Civil procedure 12(b)6, or failure to state a claim.
Addressing the question of a stay first, the court found that “the interests of (the NFL) … and the public in resolving cases in a reasonably timely fashion outweigh countervailing considerations.”
In its analysis, the court noted that the NFL claims that Hughes “fails to allege facts to support three elements of his claim: (1) that Plaintiff is a ‘consumer’ of a ‘video tape service provider’; (2) that Defendant ‘disclose[d]’ ‘personally identifying information’; and (3) that this disclosure was made ‘knowingly.’”
Of significance, the court agreed with the NFL on the first point and did not address the other two.
The VPPA defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider,” according to the court. “Neither party asserts that (Hughes) is a renter or purchaser. Instead, the parties focus on whether (he) is a subscriber,” wrote the court.
“For substantially the same reasons stated in Salazar, (Hughes) does not plausibly allege that his NFL.com subscription ‘renders him a consumer of goods or services from a video tape service provider under the VPPA.’ Unlike in Salazar, however, (Hughes) asserts an additional basis for qualifying as a ‘subscriber’ and, thus, as a ‘consumer’: his subscription to NFL+.”
Specifically, he alleges that as part of his subscription to NFL+, he received “access to content and features only available to NFL+ subscribers.” He also claims that he watched videos through the NFL App, and that “some of the viewed content was only provided through the NFL App to NFL+ subscribers.
“Thus, (Hughes) sufficiently alleges that ‘the video content he accessed was exclusive to a subscribership.’ These allegations, however, establish only that (he) was a ‘consumer’; they do not establish that (Hughes) was a consumer of ‘a video tape service provider.’”
The court agreed with the NFL that Hughes failed “to plead that he viewed prerecorded video content through NFL+, (and thus) has insufficiently alleged that he was a consumer of a ‘video tape service provider.’ … This failure is fatal to the Second Amended Complaint.”
Hughes v. NFL; S.D.N.Y.; Case No. 1:22-cv-10743 (JLR); 9/5/24
