Cease-and-Desist: One Club’s Ordeal With USATF

by EJN Comments (12) Articles, Commentary, Guest Post

Sisu Ribfest 2015

Sisu team photo from the Ribfest 5 Miler this past summer.

By Amanda Wright

In December 2014, Sisu Project (USATF New England Association Club Number 274) sent its first full squad of open men and women to the USATF Club Cross Country Nationals in Bethlehem, PA. After the event, Sisu produced a highlight video of our club which documented the experience of attending Club Cross Country Nationals. The video also included a total of five minutes of race footage of our own runners and a few other runners in our association participating in the actual event. Not only did this video chronicle a nine-year goal of the Sisu Project (to attend club xc nationals), but it also spread the word to other runners who might gain an interest in attending USATF Club National events in years to come. Anyone who has ever attended USATF Club Outdoor Track & Field Nationals knows USATF could use all the help it can get in promoting the non-elite club aspect of our sport.

Recently, two months after this event could be considered newsworthy, the USATF forced YouTube.com to stop hosting the Sisu video due to a claim of “Copyright Infringement.” When I first discovered the YouTube notice in Sisu’s YouTube account it said “Work allegedly infringed Video not from YouTube: “Masters Men’s Race Highlights – USATF Club Cross Country Championships 2014.” Having taught some classes on Copyright law, I thought based on the explanation provided, USATF mistakenly identified Master’s Race footage in the video as their own and was claiming that this was not an original creative work by the Sisu Project. So I kindly wrote and phoned Sarah Austin, Legal Associate at the National Office (whose name was displayed as the person responsible for removing the video from YouTube.com) to clarify that this was our own original work and ask that USATF retract its Copyright Infringement claim.

Two unexpected things happened next.

The first wave of shock came rolling in when I actually received a prompt return phone call from Norman Wain, who identified himself as General Counsel to USATF. The next was Norm’s explanation that USATF was not claiming that our video was not our own original work, but that USATF owns all the sole rights to display event media publicly and that part of the legal team’s job description, as a result of a new initiative to protect USATF’s intellectual property, is to remove this media when they see it displayed in public – a great use of member dues dollars no doubt. My surprise stems from the fact that this policy, as enforced by General Counsel and Legal Associates, is enforced against dues paying member Clubs at the Club and non-elite level as equally, or arguably more harshly, than it is against other competing media outlets at the professional and non-professional level.

Despite Norm’s statement that he wanted us to know that “our club was not being singled out” and “we process so many of these on a daily basis we couldn’t reach out to you [personally],” non-USATF media coverage of the event still remains on YouTube.com and all over the internet. The remaining Youtube.com coverage is more potentially detrimental to USATF than our coverage because the remaining coverage is actual coverage of the event, not a club team’s highlight video marketing their own club. Don’t believe me? Check out Jared’s video and this video from Salmini Sports film. Additionally, I noticed several professional photographers at the meet – some no doubt endorsed by USATF – as you can see, Michael Scott is featured on USATF’s website for the meet. While other rogue photographers have equally professional photos currently on display for public view – some perhaps profiting from their work and others not. Here is Leigh Valley Road Runners photos of the event on their public album available on Facebook (though the link to their smugmug page is suspiciously broken). Here are some others by Ryan Hulvat posted on Runner’s World. The purpose of pointing these inequities out is not to shut down more media or call out others producing media, but to demonstrate that if our dues money is going to pay USATF legal associates to perform the task of removing non-USATF media coverage of an event, they clearly are doing a poor job of it and a poor job of enforcing the policy equitably among USATF constituents.

Because Sisu uses the services of a pseudo-lawyer (as I call myself – though I am a member of the NY State Bar), the Sisu Project did do a prior check of USATF’s broadcasting and media policy to try to find a policy preventing the public display of prerecorded media of their events, but our efforts to find such a policy in the months leading up to the event were futile. I explained to General Counsel Norm that I could only find USATF’s Broadcasting Policy which prevents broadcasting or live airing of USATF Track & Field Events, but nothing about event photography or prerecording and how that can be disseminated by member clubs after the events newsworthiness has passed. I expressed to Norm that as a member club who pays dues to USATF, we are requesting these rules in writing and I sent a follow-up e-mail for this request which remains unanswered at this time. How can we adequately market what our member clubs do if we do not know what information and in what form we can disseminate information?

I made the mistake of making the analogy to Norm that “this ‘policy’ being enforced at the club level was the equivalent of stopping someone from taking a selfie at a New York Knicks game.” Norm proceeded to expand on my analogy and liken USATF to the NFL or NBA and say these organizations “would let you take a selfie, but would never let you record and post to YouTube.com parts of the game.” Nice try on General Counsel’s part to distinguish away my analogy – a basic first year law school skill – except for the fact that his statement is totally false; just search via YouTube.com for people recording with their phones highlights of the Super Bowl and posting those to YouTube.com. Many of these videos are recordings of the person’s experience at the game, but they also include clips of plays at the game. Of course the NFL does not care to remove these meaningless videos because they are not what we call “newsworthy.” These organizations also recognize the relevant new trends as to how individuals share their experience in today’s new world.

In a recent Runners World article by Nick Weldon, the author points out that an argument by USATF is that USATF, “would love to be the NBA and be so ubiquitous that we can afford to have our intellectual property being used by anyone and everyone…the NBA is in a financial position where they can afford that. We are trying to build assets. And to build value.” However, what USATF fails to realize is what the NFL and NBA seeks to protect about their events is their newsworthiness. USATF has time and again failed to recognize that in order for a sport or event to gain value and relevance among a large audience, it has to have newsworthiness. Organizations like the NFL and NBA need to protect their right to be the first and only disseminators of the event (or at least have access to sell the rights of that dissemination for millions of dollars to television networks). The irony is that USATF could not even manage to post to their rudimentary website the official Master’s Club score from this very event for days after the event occurred. Master’s runners sat by their computers waiting and waiting for the “official results” to be tabulated. Imagine waiting that long for any other decision on the result of a sports competition? But that’s USATF going great lengths to protect a tarnished brand of little-to-no value.

Returning to the points made in the Runners World’s article, it’s difficult to compare the USATF to the NBA because the USATF is a governing body – not a professional sports league – and the large portion of its members are not elite athletes. I agree with these sentiments and although Runners World said it was generally critics who were at fault for comparing the USATF to the NBA, I criticize the USATF for trying to operate like a professional sports organization and “protect their brand” when USATF is also a governing body of a largely volunteer, non-professional base. USATF’s application of this new policy involving fervent protection of their media and their brand is ludicrous when applied in this way to a nonprofit USATF member club.

When I explained to Norm that the video (which he did not even view) was simply a highlight video of our own team and that we were not covering the news of the meet (ie: we did not cover the BAA or Nike Oregon Project or Adidas, ect or interview the winners), so we would ask that it can be republished, he told me, “well you still cannot film a blowout professional sports game and air it publically.” Yes, “that’s true, Norm,” I replied, “except the people getting blown out in this ‘game’ are not professionals.” Norm said, “Well, you do have to qualify to get into the meet.” Again, another great attempt at a first year law school skill – except again that statement is totally false. Any dues paying member who is old enough (14 for women; 16 for men) and who is a United States citizen can enter this meet – just like anyone can become a USATF member by paying a $30.00 annual fee.

Our club team is not made up of professional athletes, but doctors and lawyers and teachers and nurses and public sector workers like many other USATF members – we want USATF to know this. We work in the running industry or go to school full time and wait tables to make ends meet. USATF does not help and will never help promote nonprofit, grassroots member clubs such as ourselves that work in our community to volunteer and fundraise for other causes in the way that the NBA or the NFL helps the Knicks and the Patriots respectively market and sell tickets. Don’t believe me? Here are the videos USATF did produce from the event available at USATF.TV. While the finishing footage waits for most runners to finish, there is no actual coverage of the Sisu Project or other similarly situated teams. No USATF news of the event mentions Sisu or other similar teams and rightfully so, we did finish 32 out of 38 clubs for the women, but what about the other club teams who finished mid-pack or close to the front, but not in the top ten? If USATF will not cover that news, why not let us promote our brand and what we stand for ourselves? The message USATF is sending sounds like this, “When we do cover an event, we will not market your club teams and you can’t use your own race footage of our race to market your team or highlight your team – thus, there will be no highlight of your team from this event. To the public and everyone else not present, it will basically appear that you did not even participate.” I can only draw two conclusions from this either a.) the person or person(s) responsible for this policy and its enforcement did not consider how this would affect club teams’ abilities to market themselves or b.) the USATF wants to intentionally kill the club aspect of our sport by stifling our ability to market ourselves because clearly they are not going to do our marketing for us. And we are not asking USATF to cover our media – that’s impossible for them to do because well as delusional I am about the Sisu Project’s greatness maybe at the National Club level clubs like Sisu “don’t matter” and don’t need coverage from USATF, but don’t we matter to our home association? Are we not at least a little entitled to bring that news and media back to the New England region where our women’s team placed third in the Grand Prix Road Racing series just two years ago?

It’s clear that the kind of marketing the NBA does to help the Knicks sell tickets is not at all on par with what USATF can do to help build the club scene up or at a minimum sustain the club scene that we have. How the NBA operates is not relevant or relatable to how we want the USATF to govern our sport at the club and non-professional level; this kind of management (or should I say mismanagement) will not meet the needs of USATF’s membership. USATF member clubs, even other professional clubs, are forced to do all their own marketing. Well all that is true unless you are Nike. USATF should not liken itself to the NBA or the NFL because they are not akin to these organizations; USATF serves a different constituency.

The Runners World’s article I mentioned earlier points out that CEO “Siegel has advocated a fierce new protection of the USATF’s brand, particularly photos and video from its meets.” These pursuits have led to other conflicts with Oiselle over Instagram posts made in May and June and video snippets Oiselle posted from the finishes of two races at the outdoor national championships. USATF Spokeswomen Geer was quoted in the article saying, “Using USATF footage or footage of USATF events is another violation of its intellectual property rights.” We agree with the author of the Runner’s World article that actions such as these against Oiselle and actions such as these against a local New England club do not make the USATF look like a well-managed organization – it makes the leadership seem outdated and disconnected with its membership. USATF is supposed to govern “our sport” and professional athletes are only a small portion of the constituency.

Sisu intended to use our marketing at Club National Events to help promote our brand and garnish more members which only means more dues paying members for the USATF. In fact, the only reason the USATF found our video is because a new local sponsor of our team tweeted the link to the video – which was exactly the kind of positive attention Sisu had hoped to gain from that marketing and it is exactly the kind of positive attention USATF will prevent local non-professional clubs from yielding in the future. For nine years Sisu has believed in the power of positivity and enthusiasm for our sport and our media mastery has allowed us to take spreading this enthusiasm to the next level. As Sisu Club President, Matthew Germain, says, “In this day and age all media is now displayed publicly. If the USATF wants to fight its own members on this, they are in for a long fight entrenched in archaic views of how the world now disseminates information.” Runner’s World quoted former CEO, Doug Logan: “There is a schizophrenic architecture to USATF that is meant to serve both a volunteer membership and a professional sport that causes a lot of wacky behavior.” We could not agree more. USATF’s application of this policy at the club level and its application of it to us as member clubs stifles our ability to grow our sport, our hobby, and our passion. It blocks us from the ability to be noticed by small local sponsors and it stops us from spreading the word to collegiate athletes that “completive running does not end after college.” We are not professionals. USATF will never help meet the needs of local club or local association’s ability to market operating in this manner. We are clearly distinguishable from the NBA and NFL and member clubs and local associations need to take back the ability to market themselves and remind USATF that they are a governing body, governing many non-professional members – not a professional sports organization. They cannot and should not hide behind the guise of Intellectual Property law when making these decisions – just because you can, does not mean you should or that it is good for our sport.

Thus, when USATF moves forward and makes decisions to fiercely protect their intellectual property rights, they must account for the non-professional constituency and listen to the voice of the membership. This application of their authority affects our local clubs, our association, our athletes that maintain active blogs to buildup local support systems, our photographers that come to events to photograph our runners; this affects us all. If you take nothing else away from this article you should know that USATF’s consideration for its dues paying non-professional members in enforcing new policies and initiatives is conspicuous by its total absence in everything they do.

If you want to understand the kind of video USATF’s legal team found it necessary to remove visit www.sisuproject.com and click on “Free Sisu” in the menu – type in the password “free sisu” and you will be able to view our video because we are now hosting it through our own site (at least until we receive a cease-and-desist letter). We hope you agree that these action are an unfortunate use of USATF time and money when there is much more that they could be doing for our sport and we hope you will stand with us in telling USATF this action and those like it are unwarranted, unprofessional, and out of touch, especially when applied to its own non-professional member clubs.

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12 Responses to Cease-and-Desist: One Club’s Ordeal With USATF

  1. Go to YouTube and file a counter-claim (if you haven’t already). The video in question should be reposted while the claim is evaluated. The USATF should lose, one would hope so anyhow, but not if you don’t follow the process.

    • James Fields says:

      In most good public libraries, see:

      U.S. Code Title 17, Copyright Law of the United States of America
      which protects “original works of authorship fixed in any tangible medium of expression …”

      Section 102 – Subject Matter of Copyright
      which lists literary works, musical works, etc.
      Does the alleged intellectual property meet statutory requirements?

      Sections 409, 411 and 412 — Registration and infringement
      Complainant must have registered the work with U.S. Copyright Office prior to infringement complaint.

      (Although I taught Communication Law for 20 years I am now retired and do not comment here about your described situation. Your local bar association could refer you to legal counsel.)

  2. Jason Holloway says:

    Based on USATF and AAU’s history we need a new organization that isn’t so big that it has lost sight of its own vision. So I’m guessing parents can’t videotape their kids playing little league baseball as well. If the USATF has the audacity to compare itself to the NFL in this matter then they have truly lost touch with the athletes we train. Our local SCA embezzled our Club Region funds and still has total control after the lawsuits. USATF = Nothing

  3. Trey says:

    Password for link on site doesn’t seem to work.

    Really great article and response to the issue. Very sad indeed that USATF has decided to go after “small fish” as they are easier to catch than the drug cheats and the collusion with Nike that seems to have taken over the organization. And there’s the ignoring of the membership vote for Bob Hersh. Except for my work as an official and a hope that things will improve, I would not renew my membership of the organization in a nano second. This is almost as bad as the Avery Brundage era in the 1960’s and 1970’s with the old AAU, the predecessor of TAC and now USATF.

    • Tray, great points, we at the Sisu project appreciate your support. The password has been tested from multiple computers and various browsers. It certainly works make sure you use no caps and one space “free sisu”.

      -Sisu videographer and photographer. ?

  4. Karl says:

    Thinly veiled payback for New England speaking out against the Board of Directors decision to oust Bob Hersh as delegate to the IAAF

  5. Frunning says:

    I am a athletics enthousiast from The Netherlands, but from what I see and hear (from this blog and other websites) USATF is really a incompetent organisation, in many ways hampering T&F more than it guides it. Wish you all the best in this case, don’t give in to stupid reasoning on their behalf!

  6. Decaf Coffee says:

    Will you be my lawyer? I need to make a will. I’m leaving my chickens to SISU – don’t worry they are organically fed.

  7. Kevin says:

    I know USATF and other “owners” of events protect broadcast rights and issue stipulations for credentialed media who cover their sanctioned events. I thought the restriction of broadcasting footage of the event action was part of the TV network contract to protect their investment by ensuring exclusivity. They usually allow other media to post short clips (under 1:00 minute is common and not of the winners finishing) and interview and behind the scenes footage is fine. This kind of action is a completely different situation than that and makes no sense to me. How can anyone limit a non-official bystander from shooting and diseminating their “captures”? Not only does it harm the sport, I don’t believe the USATF has claim to intellectual ownership. They seem overly paranoid, out of touch and not working in the best interest of their membership.
    I hope the “membership” won’t be quiet about this type of thing.

  8. Ed Parrot says:

    From 1996 when Ollan Cassell was ousted as Executive director for about a decade, USATF made a real effort to improve what Logan accurately characterized as “schizophrenic architecture”. There were still many problems, but you got the sense that most of those in power, from Bill Roe and Craig Masback on down, were really trying to meet the needs of as many constituencies as possible. This coincided with my own heavy volunteer involvement at the national level.

    But even as things were improving, there was a bit of a power struggle with the elite athletes (with some justification) feeling they were underserved. At the same time, the USOC – certainly an organization with corruption worthy of its parent organization – pressured USATF to change its bylaws to make the Board smaller and less representative. Some very well meaning people at the time felt that USATF couldn’t buck USOC or it would risk being decertified as the national governing body. Many others among us warned that the changes being proposed would create an organization with little enough accountability that corruption and dysfunction would reign as soon as individuals inclined in that direction reached positions of power. As such, it was worth pushing back against the USOC and calling their bluff.

    Sadly, a supermajority of voters agreed with those who said not to buck the USOC. The result is exactly the sort of problem SISU ran into, along with a host of others. The President and CEOs could not have done the damage they have done without a tame Board only made possible by the restructuring changes.

    But I expect nothing less from the national office than to pretty actively undermine just about everything in their attempts to control everything. And a majority of the membership in 2012 re-elected one of the primary architects of the increased dysfunction – it was primarily elite athletes who unsurprisingly are now having second thoughts after some of the snafus of the past couple years.

    The only thing USATF national office or Board is going to respond to is pressure they can’t ignore. They don’t care if half the local clubs leave or associations dry up. Elite athletes are probably the only ones with leverage. That or go after USATF’s sponsors, but since the biggest sponsor, Nike, is essentially pulling the strings, that is not likely to work.

    Anyway, I plan on continuing to participate in the USATF-NE road and X/C grand prix because I enjoy them and I want to support the local folks I know work hard to put these things together. But national – that’s pretty much a lost cause until potential medal winners start forcing the issue.

  9. Scott Fairbanks says:

    I read this and sent the following grievance letter to [email protected]. Not sure if that was the best target but it was all I could find.

    For many years I competed at the club level in the PA/USATF. I love the sport of XC and Track and Field.
    I gave a lot to it. My oldest kid is now about to enter high school. All three of my children are involved in these two sports.

    I recently read an article about how the money that I give to USATF is being spent, and I am horrified. Please read:

    Until USATF changes their policies to being a promoter of the sport instead of a legal bully and profiteer, I will actively seek to erode the influence of USATF. In my case this means seeking non-USATF venues and pursuing the establishment of non-USATF championships. Also moving my children into other sporting activities that are governed by bodies that understand their role as serving a community that is connected by a shared love, rather than legal controllers of a revenue source.

    Scott Fairbanks

  10. The USATF is being deliberately vague by talking about “intellectual property”. That term is designed to confuse several unrelated laws, which makes it handy for those seeking to intimidate with vague threats. For clear thinking, let’s shun it. See

    Some of the statements in the article refer to copyright, which is one specific law. A copyright laywer told me that way the USATF could claim a copyright on such videos — if attendees had signed an agreement assigning copyright to the USATF. In the absence of this, the USATF might have no basis to claim copyright. It would be a good
    idea to consult a copyright lawyer.

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