Salazar v. NBA: Are You an NBA Subscriber? Here is What You Should Know

On October 15, 2024, the United States Court of Appeals for the Second Circuit, reversed a district court and allowed a consumer class action to continue against the NBA for alleged violations of individuals’ privacy rights by disclosing personal information.”[1]

The Facts

Plaintiff Michael Salazar “signed up for an online email newsletter offered at no charge by the National Basketball Association (NBA). He also watched videos on the NBA’s website.”[2] However, unbeknownst to Salazar, “the NBA [then] disclosed his video-watching history and other personally identifying information to Meta Platforms, which owns Facebook.”[3] Meta is said to have sent targeted ads to Salazar “for its own commercial purposes.”[4]

After learning that the NBA revealed Salazar’s personal information, Salazar filed a class action lawsuit against the NBA for injunctive relief and damages under the federal Video Privacy Production Act (VPPA). Under the VPPA:

it [is] unlawful for a ‘video tape service provider’ to ‘knowingly disclose[], to any person, personally identifiable information concerning any consumer of such provider.’ 18 U.S.C. § 2710(b)(1). Enacted in 1988, the VPPA includes language like ‘video tape service provider’ and ‘prerecorded video cassette tapes’—terms that invoke a bygone era of video technology. [Thus,] [i]n this case, we must grapple with how the language of this statute applies in today’s increasingly online world.[5]

So, as identified above by the Court, the “key question [in this case] is whether Salazar is a ‘consumer,’ under the VPPA, which was originally enacted during the VHS and videotape era . . . .”[6] The statute does define “consumer” to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”[7]

Salazar’s Position

Salazar stated that because he was a “consumer” of the NBA’s newsletter, he is therefore a “subscriber of goods and services” to the NBA.[8] Moreover, Salazar stated that the mere fact the NBA offers videos on its website makes it a “video tape service provider” under the VPPA.[9]

The NBA’s Position

The NBA stated that Salazar is not a VPPA “consumer,” because the “online newsletter is not an ‘audiovisual’ good or service and he is thus not a subscriber under the Act”.[10] Furthermore, during oral arguments this past April, NBA attorney Matthew X. Etchemendy of Vinson & Elkins LLP, said that “the NBA doesn’t meet the definition of a video service provider under the VPPA[.] [The NBA] . . . is more akin to a print newspaper with ‘pointers’ to movies, noting the newsletter wasn’t alleged to have contained videos itself.”[11]

The Second Circuit’s Opinion

Upon reviewing the facts of the case, the Court was not buying Etchemendy’s/the NBA’s argument regarding the terms “audiovisual” and “video service provider.” Specifically, after reviewing the language, structure, history, and relevant precedent of the VPPA, the Court concluded:

that the phrase [audiovisual] is not limited to . . . ‘goods or services,’ and the NBA’s online newsletter falls within the plain meaning of that phrase. And by trading personal information like his email and IP addresses in return for receiving the online newsletter, Salazar became a ‘subscriber of’ that newsletter.[12]

Additionally, the Court explained that:

The VPPA is no dinosaur statute. Congress deployed broad language in defining the term ‘consumer,’ showing it did not intend for the VPPA to gather 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.[13]

In other words, the Second Circuit’s broad ruling holds that “[a]ny company that sells, rents, or delivers any audio-visual materials to consumers may face potential liability under the VPPA if they share a consumer’s video viewing history without consent.”[14]

Where Does This Leave Us Today? Future Impacts?

The Second Circuit vacated the district court’s judgment – which held in favor of the NBA – and remanded the case back to the district court for further proceedings consistent with its opinion.[15] Importantly, the Salazar decision has now set “important precedent for other cases concerning the VPPA and privacy protections for consumers, especially in the Second Circuit, which includes New York, Connecticut, and Vermont.”[16] While “the Second Circuit is the only Circuit Court in the country to adopt such a broad reading of the VPPA, ”the opinion may be persuasive authority for both the Sixth and Seventh Circuits, which “are scheduled to hear oral argument in VPPA cases raising the same issues.”[17] But in the meantime – at least in the Second Circuit (which encompasses New York City, the headquarters of all four major professional sports leagues (i.e., NBA, NFL, NBA, and NHL)) – individuals such as Salazar will be deemed consumers under the VPPA.

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[1] Salazar v. Natl. Basketball Assn., 23-1147, 2024 WL 4487971 (2d Cir. Oct. 15, 2024).

[2] Mincberg, Elliot, Biden Judge Authorizes Class Action Against NBA for Privacy Violations to Continue, People For (October 22, 2024) https://www.peoplefor.org/biden-judge-authorizes-class-action-against-nba-privacy-violations-continue-0.

[3] Id.

[4] Id.

[5] Supra note 1.

[6] Supra note 2.

[7] Supra note 1; § 2710(a)(1).

[8] Id.

[9] Id.

[10] Id.

[11] Coyer, Cassandre, NBA Video Data-Sharing Lawsuit Reinstated by Second Circuit (2), Bloomberg Law (October 15, 2024) https://news.bloomberglaw.com/privacy-and-data-security/nba-video-data-sharing-class-action-reinstated-by-second-circuit.

[12] Supra note 1.

[13] Id.

[14] Yannella, Phillip N., Second Circuit’s Broad Reading of VPPA May Spark New Wave of Litigation, Blank Rome LLP – Publications (October 22, 2024) https://natlawreview.com/article/second-circuits-broad-reading-vppa-may-spark-new-wave-litigation.

[15] Supra note 1.

[16] Supra note 2.

[17] Supra note 13; see also Salazar v. Paramount Global (a case currently pending appeal in the Sixth Circuit where a lower federal court dismissed a VPPA claim by the same plaintiff as in the Second Circuit. The lower federal court found that the plaintiff was not a “subscriber of goods or services,” and thus not a covered “consumer,” under the VPPA – where he alleged only that he signed up for a newsletter, and did not allege that he subscribed to audiovisual materials); Gardner v. MeTV (a case currently pending appeal in the Seventh Circuit where a lower federal court dismissed a VPPA claim where the plaintiff did not allege that he was a subscriber of audiovisual materials).