NBA Beats Video Privacy Suit Twice On a Rule Even the Judge Applying It Doesn’t Believe In

Jul 10, 2026

By Katelyn Kohler, Esq.

A federal appeals panel signaled this month that it will likely hand the National Basketball Association (NBA) its second consecutive win in a long-running privacy lawsuit over fan-tracking advertising technology, but not without one sitting judge publicly disagreeing with the legal standard compelling that result.

On June 16, 2026, the U.S. Court of Appeals for the Second Circuit heard oral argument in Salazar v. National Basketball Association, the latest chapter in a class action Michael Salazar filed against the league in September 2022.[1] Salazar alleges the NBA violated the Video Privacy Protection Act (VPPA) by installing Meta’s tracking pixel on NBA.com and disclosing his video-viewing history to Facebook without his consent.[2] The argument marks Salazar’s second trip to the Second Circuit in this case and comes after the U.S. District Court for the Southern District of New York dismissed his claims for a second time in October 2025.

Sports Litigation Alert has followed this saga from the outset, tracking the case from its original dismissal, through the parallel fight over similar allegations against the NFL, to the district court’s second dismissal of Salazar’s claims last fall.[3]

Third Time’s A Charm?

The litigation has already produced one significant ruling. In October 2024, the Second Circuit reversed the district court’s initial dismissal and held that Salazar qualified as a “consumer” under the VPPA based on his free newsletter subscription, even though he never paid nor formally subscribed to NBA.com’s video content.[4] That decision broke from the narrower reading several other courts had applied and significantly expanded the pool of plaintiffs who could bring VPPA claims against companies using tracking pixels.[5] Notably, the panel flagged that a harder question remained, what counts as “personally identifiable information” (PII), which foreshadowed exactly what is playing out in this case now.[6] The NBA petitioned the Supreme Court to review that holding, but the Court denied certiorari in December 2025.[7]

With the consumer question resolved in Salazar’s favor, the case returned to the district court to address the harder element of the VPPA claim, i.e. whether the information disclosed to Meta actually qualified as PII. The district court then dismissed Salazar’s second amended complaint in October 2025, applying the Second Circuit’s “ordinary person” standard from Solomon v. Flipps Media, Inc.,[8] which asks whether an ordinary person could decipher a Facebook ID and corresponding code strings well enough to identify a specific user’s viewing habits.[9] The court decided to stay consistent with the Second Circuit’s prior application of the same standard in Hughes v. National Football League rejecting similar pixel-based claims.[10]

A Judge Questions His Own Circuit’s Rule

That October dismissal is what brought the parties back before the Second Circuit this month and what produced the most notable moment of the argument. Counsel for the NBA urged the panel to follow Solomon and affirm.[11] Most notably, Senior Circuit Judge Pierre N. Leval agreed the panel is likely bound by that precedent, but he did not stop there. Leval observed that the same “ordinary person” standard would have permitted the original conduct that prompted Congress to pass the VPPA—wherein a reporter’s publicized Supreme Court nominee Robert Bork’s video rental history—so long as the disclosure happened through code rather than plain language.[12] Speaking for himself, Leval said he would follow Solomon but flagged that the standard “really undermines the statute and the purpose of the statute.”[13]

That is a remarkable admission from the bench, where a circuit judge is openly inviting the reversal of the very rule his own panel is applying to decide the case in front of it. The NBA leaned heavily on the Supreme Court’s December cert denial and the Second Circuit’s separate refusal to rehear Hughes en banc, treating both as indications that the higher courts see no urgency in revisiting the Solomon precedent.[14] As such, the panel reserved decision.

Same Plaintiff, Second Suit

The Solomon standard is not the only unresolved piece of VPPA doctrine bearing on sports and media defendants this year. While the Second Circuit was reconsidering what counts as PII, the Supreme Court agreed, on January 26, 2026, to resolve the first question raised by the same plaintiff: who qualifies as a VPPA “consumer” in the first place.[15] In a parallel suit against Paramount arising from nearly identical allegations, the Sixth Circuit reached the opposite conclusion from the Second Circuit, holding that a newsletter subscription does not make someone a “consumer.”[16] Judge Bloomekatz dissented, writing that the majority reached its result “only by rewriting the plain language of the VPPA,” and noting that Congress’s decision to define “video tape service provider” broadly enough to capture department stores and supermarkets shows Congress knew such providers could offer other, non-audiovisual goods or services too.[17] That circuit split is now before the Supreme Court for the 2026–2027 term.[18]

This has culminated to an unusual moment in marketing and data privacy litigation. Two separate, outcome-determinative VPPA questions—what makes someone a “consumer,” and what makes a disclosure “identifiable”—are simultaneously unsettled across different circuits, with one sitting appellate judge already on record questioning the very rule his own circuit is using to decide the second question.

Why It Matters Beyond the NBA

Sports leagues, media companies, and really any organization running tracking pixels on video content should not read the NBA’s two dismissals as the end of this litigation risk.[19] If the Supreme Court narrows the “consumer” definition in the Paramount case, defendants gain a powerful argument. However, if the Second Circuit, sitting en banc, or the Supreme Court later revisits Solomon‘s “ordinary person” standard, as Judge Leval’s comments suggest, defendants lose the second argument that has driven nearly every recent pixel-based dismissal.[20] For an industry that relies heavily on highlight content and third-party advertising tracking to monetize fan engagement, both questions carry real financial stakes. The VPPA authorizes liquidated damages of $2,500 per violation, and a single adverse ruling on either front could revive class claims across the sports and media sector.[21]

Of the two positions argued before the panel, Salazar’s reading holds up better against the statute’s text and purpose. Nothing in the VPPA definition of PII asks whether a hypothetical “ordinary person,” could decode the disclosure.[22] Meta isn’t an ordinary person. It built the pixel, assigns the IDs, and obviously can and does identify users with that data, which is effectively its entire business model. Measuring identifiability by what a bystander could figure out, instead of what the real recipient actually does, divorces the legal test from the actual privacy harm the statute was written to prevent. Judge Leval’s own comparison makes this point.[23] A standard that rewards obfuscation is solving the wrong problem.

Yet, the NBA’s underlying concern is not unreasonable. Applying the VPPA to routine pixel-based analytics really could expose much of the ad-supported internet to harsh violations for conduct Congress never contemplated in 1988. Perhaps, Congress could narrow the statute for the tracking-pixel era, instead of having the courts embed an “ordinary person” bar found nowhere in the text.

A decision is expected within the coming months, and the NBA will likely win again, on a rule one of the judges doesn’t even want to use. Whatever the outcome, it will not be the last word, as the resolution of the Paramount case still looms at the Supreme Court.

  1. Oral Argument, Salazar v. Nat’l Basketball Ass’n, No. 25-2478 (2d Cir., June 16, 2026), https://www.courtlistener.com/audio/105514/salazar-v-national-basketball-association/. ↑

  2. Salazar v. Nat’l Basketball Ass’n, No. 22 Civ. 07935, 2025 WL 2830939, at *1 (S.D.N.Y. Oct. 6, 2025). ↑

  3. See e.g., Consumer’s Privacy Claim Against NBA and Its Website Rejected, Sports Litig. Alert (Oct. 20, 2023); NFL Stuffs Plaintiff at the Goal Line in Video Privacy Protection Act Case, Sports Litig. Alert (Nov. 29, 2024); Consumer’s Privacy Claim Against NBA and Its Website Rejected, Again, Sports Litig. Alert (Oct. 31, 2025). ↑

  4. Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024). ↑

  5. See Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022 (7th Cir. 2025) (following the usual broad reading of the Act); But see Salazar v. Paramount Glob., 133 F.4th 642 (6th Cir. 2025) (rejecting the Second Circuit’s approach). ↑

  6. Salazar, 118 F.4th at 548–49. ↑

  7. Nat’l Basketball Ass’n v. Salazar, No. 24-994, cert. denied (U.S. Dec. 8, 2025) (drawing amicus support from the NFL and the National Retail Federation). ↑

  8. Solomon v. Flipps Media, Inc., 136 F.4th 41, 44 (2d Cir. 2025). ↑

  9. Salazar, 2025 WL 2830939, at *3 (applying Solomon). ↑

  10. Hughes v. Nat’l Football League, No. 24-2656, 2025 WL 1720295 (2d Cir. June 20, 2025); see also Taino v. Bow Tie Cinemas, LLC, No. 23-CV-0537, 2025 WL 2652730, at *8 (S.D.N.Y. Sept. 16, 2025). ↑

  11. Josh Russell, Second Circuit Takes Another Shot at NBA Data Tracking Class Action, Courthouse News Serv. (June 16, 2026), https://www.courthousenews.com/second-circuit-takes-another-shot-at-nba-data-tracking-class-action. ↑

  12. Salazar v. Nat’l Basketball Ass’n, supra note 1; Russell, supra note 11. All three precedents shaping the PII standard in this litigation arose from sports-content defendants: Solomon involved FITE, a streaming platform built around boxing, wrestling, and other combat-sports pay-per-view programming, and Hughes involved the NFL. The Second Circuit’s Solomon opinion itself relied in part on the Second Circuit’s earlier ruling in this very case. See Solomon, 136 F.4th at 49–50 (citing Salazar, 118 F.4th at 545). As a result, the body of “ordinary person” doctrine now governing pixel-based privacy claims across the Second Circuit has been built almost entirely through litigation against sports leagues and sports-adjacent streaming services. ↑

  13. Russell, supra note 11 (quoting Senior Circuit Judge Pierre N. Leval). Law360’s report on the argument went further, characterizing Leval’s remarks as branding the Solomon standard itself “wrong.” Allison Grande, 2nd Circ. Judge Blasts ‘Wrong’ Video Privacy Test In NBA Suit, Law360 (June 16, 2026, 11:33 PM EDT), https://www.law360.com/articles/2490568/2nd-circ-judge-blasts-wrong-video-privacy-test-in-nba-suit; see also NBA Likely to Beat Privacy Suit on Shaky Second Circuit Law, Bloomberg L. (June 2026) (reporting Salazar had made “strong arguments” for reviving his claims). ↑

  14. Russell, supra note 11. ↑

  15. Salazar v. Paramount Glob., No. 25-459, 2026 WL 189831 (mem.) (U.S. Jan. 26, 2026) (granting certiorari). ↑

  16. Salazar v. Paramount Glob., 133 F.4th 642, 651 (6th Cir. 2025). The Sixth Circuit denied rehearing en banc in May 2025, and the D.C. Circuit has since adopted the same audiovisual limitation in a separate case. Pileggi v. Wash. Newspaper Publ’g Co., 146 F.4th 1219, 1224 (D.C. Cir. 2025), reh’g denied, 2025 WL 2784620 (Sept. 30, 2025). ↑

  17. Salazar v. Paramount Glob., 133 F.4th 642, 653 (6th Cir. 2025) (Bloomekatz, J., dissenting). ↑

  18. See supra note 15. The Second and Seventh Circuits read newsletter subscriptions as enough to make someone a “consumer.” Gardner v. Me-TV Nat’l Ltd. P’ship, 132 F.4th 1022, 1025 (7th Cir. 2025); Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 537, 549 (2d Cir. 2024). The Sixth and D.C. Circuits disagree. See, e.g., Pileggi v. Wash. Newspaper Publ’g Co., 146 F.4th 1219, 1224 (D.C. Cir. 2025). Professor Victoria Schwartz of Pepperdine warns the narrower reading would let companies dodge the VPPA by routing subscriptions through newsletters instead of direct video access. Brief of Professor Victoria L. Schwartz as Amicus Curiae Supporting Petitioner at 19–24, Salazar v. Paramount Glob., No. 25-459 (U.S. filed Apr. 2026). ↑

  19. See supra note 12 and accompanying text. ↑

  20. See Solomon, 136 F.4th at 44. Solomon did not break new ground so much as join an existing consensus. See In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 290 (3d Cir. 2016); Eichenberger v. ESPN, Inc., 876 F.3d 979, 985 (9th Cir. 2017). Since Solomon, district courts within the Second Circuit have applied it to dismiss a string of similar claims. See, e.g., Hughes, 2025 WL 1720295; Taino, 2025 WL 2652730, at *8; Salazar, 2025 WL 2830939, at *3. ↑

  21. 18 U.S.C. § 2710(c)(2)(A) (providing for liquidated damages of $2,500 per violation). ↑

  22. 18 U.S.C. § 2710(a)(3) (defining “personally identifiable information”). ↑

  23. Russell, supra note 11 (reporting Judge Leval’s comparison that, under this standard, the conduct that prompted Congress to pass the Act in the first place would have been lawful so long as the disclosure traveled as code rather than plain English). ↑

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